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HomeMy WebLinkAboutYardley 02-02-13 'nt By: FELICITY D. BRIGGS; 416 925-9933 ; Feb-14-02 10:29AM; IN THE MA TIER OF AN ARBITRATION BETWEEN The Children's Aid Society of The County of Prince Edward (Hereinafter referred to as "the Employer") AND Ontario Public Service Employees' Union - Local 448 (Hereinafter referred to as "the Union") Regarding: Grievance of Brenda Yardley Sole Arbitrator: Felicity D. Briggs For the Employer: V incent Panetta, Counsel William Sweet Mary Camp For the Union: Kristin A. Eliot, Counsel Bob Cooke Simon Vincent Brenna Y Flrdfev ~ Page 2/15 Brenda Yardley, a system administrator, filed a grievance alleging that the Employer failed to pay her overtime for certain hours pursuant to the collective agreement. The parties provided the following agreed statement of facts: · The Employer and the Union were, at all material times, bound to a first collective agreement expiring April 30, 2001 (Exhibit #1). · The Grievor is a Systems Administrator and filed a grievance (Exhibit #2) dated May 1], 2001 alleging that she should have been credited with overtime for the hours in excess of regular work hours spent for travel and attendance at a training meeting in Toronto on or about Monday April 23, 2001. · Pursuant to article 25 of the collective agreement and the Employer's practice, the regular daily hours of work are 9 a.m. to 4:30 p.m., Monday to Friday. This is inclusive of a one (1) hour paid meal period each day. · On or about Monday April 23, 2001 the Grievor, and a co-worker also in the bargaining unit, traveled to and from Toronto, by train, to attend a training meeting taking place on that day. The Grievor lives in Picton and therefore, drove to aild from u'1e train station in BelleviHe on !v1onday April 23, 200i. · The Grievor left her home at 5:30 a.m. in order to take the 6:30 a.m. train to Toronto from Belleville, arriving at 8:20 a.m. in Toronto. The meeting started at 9:00 a.m. and went until 5:00 p.m. She took the 5:30 p.m. train from Toronto aniving back in Belleville at 7:] 9 p.m. She then drove back to her home in Picton, aniving at 8:00 p.m. · The Grievor attended at the Child Welfare Information System (eWIS) meeting in Toronto on April 23, 2001. The Employer's office is a member of a multi- office eWIS group which has statistical meetings in Toronto on a regular basis. The purpose of the meeting was to infonn and train all members of the group on various aspects of the statistical functions of the CWIS. The meeting was held at the offices of the Ontario Association of Children's Aid Societies, of which the Employer is a member. <l!> TIIt~ Gri~\I()f'~ ~:riif':jHlmICf': ni Ow nlf':f':flnrr ;md lwr tnlVf..j hv fnllTl UJP'H" ~llthnri'71:>n .0 _..._.c -.n, , '., ". :.... --~.._,...~".~".._........_~~, -. ,.,-~ ~.",.._, -~-~""":"'"''''''n ,.~."",.___" .........-- "'--'Y' ~,- ~,J "'","__~_"....,.", ~. ................. .,,^"'V-"'...-"'.""-........AA-"',,~......~ by the Ernploycr. !nt By: FELICITY D. BRIGGSj 416 925.9933 Feb.14-02 10:30AMj Page 4/15 · Upon her retmTI, the Grievor submitted a time sheet to the Employer claiming the following working hours: Monday April 23 14.5 hrs Tuesday April 24 7.5 hrs Wednesday April 25 7.5 hrs Thursday April 26 7.5 hrs Friday April 27 7.5 hrs TOTAL 44.5 hrs · After the completion of the work week in paragraph 8, the Grievor submitted an Authorization of Overtime sheet indicating 7 hours of overtime for the week of April 23, 2001 (Exhibit #3). This was denied by Ms. Camp, · The hours cJaimed by the grievOJ' on Apri124 to April 27 were hours worked by the Grievor at the Employer's offices. The hours claimed on April 23 included hours spent by the Grievor traveling to/from and attending the training meeting at the QACAS office. · The Grievor's was only paid for her regular hours of work (7.5 hours) on April 23 for a total of 37.5 for that week. The Grievor was also paid her regular weekly rate of pay for t~e week of April 23. · The Grievor was reimburses for her expenses in respect of meals, the cost of the conference, and the cost of traveling by train in accordance with article 23 of the collective agreement. Furthennore, the Grievor was reimbursed for kilometres to and from the train station in Belleville in accordance with article 20.01 · The parties agree that the issue in dispute is whether the Grievor ought to have been permitted to claim and be granted, the time she spent traveling to/from the conference outside of regular working hours, as overtime for the purposes of the collective agreement. In particular, the appropriate interpretation of articles 23 and 25 as it relates to these facts, is ~t issue. The relevant sections of the collective agreement are: Article 23 - Staff Development 23.1 Any course, workshop or contcrence attcnclecJ by cinployees as required or approved by the Employer shall be reimbursed by the Employer on the followmg basis, ~nt By: FELICITY D. BRIGGS; 416 925-9933 Feb-14-02 10:30AM; Page 5/15 (a) the cost of the course, workshop or conference; (b) the employee suffer no loss of pay during such attendance; and (c) the employee shalJ suffer no loss of pay if required to travel to and from the course, workshop or conference, plus meal allowance and parking charges, if any. Article 25 - Homs of work & Overtime 25.1 Nothing in this agreement shall be construed as a guarantee of available work. 25.2 Employees shall receive a paid lunch break of one (1) hour during the normal work day between 9:00 a.m. and 4:30 p.m. 25.3 There shall be a paid fifteen (15) minute break period in each half of a normal work day. 25.4 the Union and the Employer recognize that obligations to children and families will make overtime necessary from time to time. 25.5 The regular work week for full time employees shall be thirty-seven and a half (37.5) hours per week inclusive of a one (1) hour paid lunch period, Monday to Friday. Pre.approval to work other than the normal hours of 9:00 a.m. to 4:30 p.m. must be obtained in writing from the employee's supervisor. 25.6 Overtime homs are those hours worked by employees which exceed the regular weekly hours of work stipulated in Article 25.05. Overtime shall be accwnulated by employees at straight time to forty (40) hours in a week and at time and one half (I Y2) thereafter. For the purposes of this article, all paid time by the Employer shall be included in the calculation of overtime pursuant to this article. 25.7 Accrunulated overtime shall be taken as equivalent time off by the end of the fIrst quarter of the calendar year next following the calendar year in which the overtime was accrued. Such time shall be scheduled at a mutually convenient time. 25.8 All overtime must be authorized and approved in advance by the employee) s immediate supervisor wherever possible. Where it is not possible to seek advance approval for overtime) such approval must be sought as soon as is practicable thereafter. 25,9 Existing G111ployees as at the dale; of fatificdiiull of ihe Colieciive Agreement may receive ovenime accrued, up to the date of ratification, as a cash payout upon the severing of their employment relationship ,nt By: FELICITY D. BRIGGSj 416 925-9933 Feb-14-02 10:31AMj Page 6/15 with the Agency. No employee shall be entitled to receive more than one hundred and sixty (160) hours of overtime worked to be calculated at time and one half (1 ~) their regular hourly rate existing just prior to ratification based on thirty-two and a half (32.5) weekly hours of work. Employees may take this accrued time as lieu time prior to the severing of their employment relationship. 25.10 There shall be no duplication or pyramiding of any premilUll payment or compensating time off provided by tIus agreement. Nothing in this article shall require the Employer to schedule employees in a manner that will attract overtime or any other premium pay. UNION SUBMISSIONS There is no dispute between the parties that the training session attended by the grievor on April 23, 200 I falls under the definition of article 23. The difference arises as to what, if any, compensation the grievor is owed for those hours spent either in attendance at or while travelling to the training session that fell outside her regular daily and weekly hours. Ms. Eliot, for the Union, asserted that it is clear from the construction of the various provisions of the collective agreement that the grievor is entitled to overtime compensation for those hours spent traveling on April 23, 2001. Further, she should receive one half hour of overtime for the time she spent in attendance at the training session between the hours of 4 :30 p.m. and 5 :00 p.m. Article 25 clearly defines overtime hours as those in excess of the nonnal weekly hours and there is nothing in article 23 that abrogates the grievot's right to such overtime. It was contended by the Union that the first step this Board must take is to find that the tnnc the gncvor spent In attendance at and in any travel to and fi'om the autborized meeting \lv'as time worked, Such an interpretation is conb~Llent with the .nt By: FELICITY D. BRIGGS; 416 925-9933 Feb-14-02 10:31AM; Page 7/15 tenus of this collective agreement, the established jurisprudence and must lead to the upholding of the grievance, Ms. Eliot rightly anticipated that the Employer would take the position that the phrase "suffer no loss of pay" found in article 23 means that the grievor is entitled to nothing more than her regular weekly pay. It was suggested that there are two approaches to the phrase "suffer no loss of pay)) and both assist the Union's interpretation. The first is that the application of article 23 is confined to course attendance and travel that occurs within a regular work day as defined in Article 25, The purpose of articles 23.01 (b) and ( c) is to ensure that employees receive a nothing less than their daily wage even though they are not at their regular place of work, The also applies if part of the work day was spent in transit to and from a conference. Under this approach attendance or travel time that took place beyond the normal work day is not considered in article 23.01. In order to determine the appropriate entitlement one has to look to article 25.06 wherein it is provided that overtime is to be paid. Article 23 does not override the provisions of article 25. Similarly; it does not re-define or temporarily alter the definition of the normal day or the normal week. To do so would require very clear language and that is not anywhere to be found in article 23 or article 25. The second approach is that article 23 speaks only to "no loss of pay" and under the terms of this collective agreement overtime is not paid but dealt with by granting time off with pay. Therefore; the construction of the language in article 23 addresses only that there shall be no loss in the usual or normal pay. It does not consider the issue of compensating time off. Article 20 or the coHective agreernent provides f~Jr the reimbursement of travel allowances and for meals on slIch days \vllcn "an employee is required to travel in !nt By: FELICITY D. BRIGGS j 416 925-9933 Feb-14-02 10:32AMj Page 8/15 the course of her duties", As can be seen from the agreed facts, the grievor received those allowances. Clearly this article stands separate and apart from the provisions of article 25 because the purpose of each provision is quite different. Similarly, the Union argued, the Employer is not forgiven the cost of travel time that extends beyond the normal working hours simply because it has paid for the workshop and the actual cost of the travel. Articles 23 and 25 have separate purposes and the grievor is entitled to the benefits of both. Ms. Eliot suggested that the folly of the Employer's position can be easily seen if taken to its extreme. According to article 23, the Employer can require the grievor's attendance at workshops. If the Employer's position was correct, it could oblige her to attend at a two day workshop over a weekend and not have to compensate her beyond her normal weekly pay. Surely that was not what the parties intended when negotiating these collective agreement provisions. The Union submitted that, even if the collective agreement does not support its view, the provisions of the Employment Standards Act, S.O. 2000, c. 41, must prevail. Second 22( 1) provides that "an employer shall pay an employee overtime pay of at least one and one half times his or her regular rate for each hour of work in excess of 44 hours in each week or, if another threshold is prescribed, that prescribed threshold". The grievor's hours the week at issue were one half hour in excess of the legislated maximum. Certainly the extreme example of the Employer's position outlined above would certainly contravene the Act. This Board~s responsibility is to interpret the collective agreement in a manner that is consistent with the legislation, Even if the Board were persuaded by the Employer's nt By: FELICITY Q. BRIGGS; 416 925-9933 Feb-14-02 10:33AM; Page 9/15 interpretation of the collective agreement, the prOVISIOn must be struck down because it is inconsistent with the Employment Standards Act. As stated at the outset, the Union's position in this matter assumes that travel to and from the conference as well as the time spent in attendance is time worked. In this regard the Union relied upon Re London Association for the Mentally Retarded and Ontario Public Service Employees' Union (1984), 16 L.A.C. (3d) 165 (Saltman)~ re Canadian National Railway and Canadian Telecommunications Union (1978), 17 L.A.C. (2d) 142 (Adams); Re Steinberg Inc. and United Food and Commercial Worlcers Union, Local 486 (1985), 20 L.A.C. (3d) 289 (Foisy) and; Re Simon Fraser Health Region and British Columbia Nurses' Union (2000), 94 L.A.C. (4th) 115 (McPhillips). EMPLOYER SUBMISSIONS Mr. Panetta, for the Employer, submitted that the crux of this dispute is the reconciliation between article 23.01 and article 25.06. This Board must interpret the collective agreement in such a manner so as to give each meaning. Article 23.01 is very specific as to the circumstances in which it applies. It provides compensation to employees for attendance and travel to workshops and conferences. Article 23.01(a) states that the Employer is to pay for the cost of the function and there is no dispute between the parties in this regard. It is with clause 23.01 ( c) where the parties significantly diverge in view. However, an interpretation of clause (c ) shall, no doubt, be applicable to article 23.01(b). Both of the these provisions state that an employee shall "suffer no loss of pay" Article 26.05, on the other hand, defines overtirne as "hours worked" in excess of the regular weekly hours ~nt By: FELICITY D. BRIGGS; 418 925-9933 Feb-14-02 10:33AM; Page 10/15 It was the Employer's assertion that the language of article 23.01 was specifically intended to be an indemnification against the loss of wages or earnings. It was not intended to create an ability to count hour for hour of time worked. Article 23.01(c ) is a guarantee that the Employer shall provide the employee with what they would otherwise have earned that day or week. As an indemnification clause, there is no further compensation in the fonn of overtime. This issue was considered in Re Little's Nursing Home (Tecumseh) Limited and Service Employees' Union, Local 210 (1979),24 L.A.C. (3d) 142 (EJJis). It was urged that "suffer no loss of pay" is a phrase that implies that an employee could have lost monies but for the protection of article 23.0 I ( c). In other words, the parties are treating these days as something other than nomal days of work. The Union's case is based on the proposition that the grievor's time spent in travel and attendance at the workshop was time worked. This collective agreement cannot sustain such a finding. In this regard the Employer relied upon Re Hawkesbury and District General Hospital and Ontario Nurses' Association (1984), 15 L.A.C. (3d) 213 (Burkett) and Re Deault and Treasury Board (Department of National Defence) (1983), C.P,S.S.R.B. No, 86. It was Mr, Panetta's contention that in order for the Union's view to succeed, the collective agreement would have to be either totally silent regarding compensation for workshops or contain a clear reference to overtime entitlement in article 23.01. Neither can be found and that is most telling, Further, a finding for the T Inion virtually reads article 23,0 lout of the collective agreement. It would be improper for this Board to issue a decision which would give no affect to article 23,01, nt By: FELICITY D. BRIGGS; 416 925-9933 Feb-14-02 10:34AM; Page 11/15 Regarding the Employment Standards Act, it was the Employer's submission that the collective agreement between provides a greater benefit than the Act. Moreover, section 22 can only be relevant if the time was worked and, as stated above, this Board should find that the time at issue was not time worked. The Employer conceded that the extreme position set out by the Union was allowable under its interpretation of the collective agreement. That is clearly how the parties constructed article 23. But that is not the fact situation before this Board. Indeed, it could also happen that an employee would do nothing other than travel two hours to a conference on Monday, attend the actual conference on Tuesday and return on Wednesday. Clearly, there is no inherent unfairness to the application of article 23.01. In reply, the Union sta~ed that the Employer)s position is predicated on a finding that the tune at issue is not time worked and the clear reading of the collective agreement and the jurisprudence simply does not allow for such a finding. Indeed, to declare that article 23.0 I merely provides an indemnification suggests that the employer did not have a legal obligation to pay for travel and attendance in any event. DECISION The parties were agreed that the dispute is an interpretative matter. There was also no dlspute that the Interpretation would be dependent upon whether the time the grievor spent lTavelling to and attending at the training session is considered time lnt By: FELICITY D. BRIGGSj 416 925.9933 Feb.14-02 10:34AM; Page 12/15 worked. It was the Union's view that the collective agreement and the jurisprudence must lead to a finding that the time spent was worked while the Employer's position was that the article 23.01 is an indemnification clause. I am of the view that the grievance must succeed. In Re London Association for the Mentally Retarded (supra), Arbitrator Saltman was considering the issue of whether such travel time is time worked. In that case, as in the instant matter, the conference was not mandatory. In her decision she reviewed the jurisprudence to date and stated, beginning at page 167: Travel time mayor may not be considered to be "work" depending on the circumstances in which it occurs. For instance, travel between an employee's place of residence and assigned place of work is generally not considered to be "work". This may be distinguished from travel for the purposes of carrying out an assignment, which may include attendance at a cor..ference, which is commonly regarded as "work": see Re CUPE Local 767 and Ontario Housing Corp. , Grievance Settlement Board file no. 159/77 (Adams (unreported)). This distinction was recognized in the case of Re Wiberg and Treasury Board (Ministry of Transport), P,S.S.R.B. file No, 166-2-286 (WeatheriU (lUlfeported)) (the ~'Wiberg" case), a decision of the Public Service Staff Relations Board. In that case, the grievor was a steamship inspector. Although his office was in Toronto, the grievor was frequently dispatched to other locations to conduct inspections. On the occasion in question, the employer refused to compensate the grievor for time spent in travelling between his home in Toronto and the inspection site in Collingwood. The grievor filed a grievance, claiming that he was entitled to be compensated for the travel time at overtime rates. In upholding the grievance, the learned arbitrator made the following observations at pp5 and 6 of the award: Generally speaking, when an employees travel to his work each day) he is not Hat work)) until he actually arrives at his office or plant or job site. If his residence is at some distant location, that IS his own affair. ent By: FELICITY D. BRIGGS; 416 925-9933 Feb-14-02 10:35AM; Page 13/15 Once he does arrive at the office, however, he is said to be at work even though he may not actually be perfonning the particular tasks appropriate to his classification. He may simply be sitting at his desk waiting for an assignment, and yet he is indeed "at work", and entitled to be paid. Likewise where, in the course of the day, he travels from one location to another for the purpose of perfonning his job~ he is "at work" throughout that time. In the instant case, the essence of the employer's case is that the grievor did not begin work on December 2nd until he arrived in Collingwood at 7:30 a.ill. that morning. The underlying assumption is that his getting to work at Collingwood that day was the grievor's own business, just as his getting to work in Toronto on any other day was his own business. Luckily for the grievor, he was not asked to report in Vancouver or Halifax that day. Merely to state this assumption is surely sufficient. It is obviously false... .. And later at page 169 Ms. Saltman stated: In the instant case, the grievors were engaged in travening to an.d from a conference in Chatham on February 9th and lOth, in excess of their nonnal work hours. In accordance with generally accepted arbitral principles, the board finds that the time spent in travel was "work", at least for the purposes of overtime compensation. 1 agree with that analysis. In the instant matter, the Employer would have me find that the time spent travelling was not work because of article 23.01(c ). The Employer also argued that to find for the grievor would read article 23.0 lout of the collective agreement. I disagree on both points, Article 23.0 I (c ) provides that employees shall not lose pay. It is a provision to ensure that if~ for example, the grievor spent only four hOlrrs in total on the day in question attending at emd in her lravels to and fi~om the training session ~nt By: FELICITY D. BRIGGS; 416 925-9933 Feb-14.02 10:35AM; Page 14/15 she would not lose her regular. That is to say that she would not have had her pay reduced to four hours for that day. Simply put, there is nothing in article 23.01 that would lead me to find that the time spent by the grievor on April 23, 200 I was not "work" and therefore not subject to the overtime provisions of the collective agreement. This interpretation neither reads out article 23.01 nor does it create an inconsistency between article 23.01 and article 25.06. Article 23.01 applies for the normal hours of work and ensures that the employee will not lose pay in the event that the actual time spent is less than the normal hours. If it occurs that an employee is travelling to and/or attending at a conference for a total number of hours in excess of the weekIy nonnal hours as set out in article 25.05, then article 25.06 provides appropriate compensation, that is, overtime. In my VIew, Re Deault (supra) and Re Hawkesbury (supra) proffered by the Employer are distinguishable. In both cases, the collective agreement provided that employees would not suffer loss of "regular>> payor salary, In Dealt, there was a provision in the collective agreement that stated employees would be paid for any overtime in connection with travel time to and from a course. However, there was also a Letter of Understanding that significantly qualified that provision by stating that employees would "not suffer any loss in regular pay" for travel to and attendance at certain courses because some particular courses represented "an opportunity for individual self development beyond that which the Employer requires of the employee to simply maintain ClIrrent operation". 'rhe Board found that the course at issue fell into that category and, accordingly, thc gTicyor was not ~nt By: FELICITY D. BRIGGS; 416 925-9933 Feb-14-02 10:36AMj Page 15/15 entitled to overtime. In the Hawkesbury decision Arbitrator Burkett was considering the appropriate payment, if any, of Jury and Witness Duty to a nurse on a day she was absent from the workplace resulting from a lieu day off. He found that a lieu day was not a day worked and so the grievance was dismissed. Given my view of the proper interpretation of the collective agreement it is not necessary for me to consider the Employment Standards Act. For all those reasons, the grievance must succeed. I remain seized in the event that there are problems implementing this decision. Dated in Toronto this 13th day ofFebmary, 2002.